THE MAIN STREET LAWYER

Help your clients pick a nursing home

You know how to investigate a nursing home case and how to spot evidence of negligence—or worse. Use that experience to show your clients how to steer clear of the wrong homes, and help them make the right decision for their loved ones.

If you handle nursing home cases, your clients may have asked your advice about picking a nursing home. After all, you’ve had a firsthand look at the dark side—pressure ulcers that penetrate to the bone, sepsis born of dislodged feeding tubes, repeated fractures from unattended falls, restraints that entangle, and food that chokes—all compounded by malnourishment, dehydration, untreated depression, and chronic inattention from inadequate staffing. You don’t need to hang your shingle out for too long before you realize that these occurrences are all too common in the care of the 1.5 million elderly Americans who reside in our nation’s nursing homes.1

Recently, the Centers for Medicare and Medicaid Services (CMS) gave one in five Medicare/Medicaid-certified nursing homes—which house over a quarter of a million patients—the lowest rating (one star, out of a possible five), based on quality of care, staffing, and health inspections.2 Judged against more than 180 Medicaid-directed regulatory standards, each one-star home had an average of 14 quality-of-life or safety deficiencies in a one- or two-year period. Many of these involved actual or imminent harm to residents. In November 2009, University of California researchers released a report showing that nationwide, violations of nursing home regulations rose 8 percent from 2003 to 2008, with some states showing increases as high as 71 percent.3

And a Government Accountability Office report released in August 2009 found that for-profit homes—which account for the majority of beds in most areas—showed the worst performance. To make matters worse, facilities that rank “above average” often have the longest waiting lists, particularly for Medicare or Medicaid beds.4

If you’ve done your homework, you know that even those statistics do not offer a reliable picture of the problem. The Medicare/Medicaid star system, for example, is partly based on unaudited self-reports about staffing and quality-of-care criteria. Another star-rating component, the annual state survey required by CMS, varies widely from state to state and surveyor to surveyor in standards and reliability.5 Your own case research probably shows that reported deficiencies are only the tip of the iceberg and that substantial histories of untreated pressure ulcers, multiple falls, and other problems regularly precede these investigative findings.6

Clearly, there’s more to nursing home evaluation than meets the cautious eye of a professional litigator, much less the worried eye of an elderly person or someone concerned about finding a home for a failing family member. So how do you turn your experience and knowledge into useful advice for your clients and their loved ones?

First, take stock of what you don’t know. You’re probably not a physician, a social worker, or a case manager. Your advice cannot fully address the person’s specific medical, psychosocial, or quality-of-life needs, and you need to be clear with your client (and yourself) about those limitations. You are also, most likely, not a financial planner or even an elder law specialist, so you are not in a position to “cost out” payment strategies or pursue alternative care options, although long-term care advocates urge the exploration of alternatives to nursing home care as a first step in the planning process.7

What you can offer someone looking for a nursing home is a lawyer’s perspective on common financial, administrative, medical, and quality-of-life concerns that arise in nursing home care and some tools for evaluating how well a specific nursing home addresses them.

Coverage considerations

Before you can give informed advice on financial considerations, you need to be up to speed on Medicare and Medicaid coverage—and how the two differ. For eligible patients—people 65 or older, some disabled people under 65, and people of all ages with end-stage renal disease—Medicare covers up to 100 days of necessary skilled nursing care following a three-day minimum hospital stay.8

The first 20 Medicare days are paid in full; after that, the resident pays a daily copay, which may be covered by a client’s Medigap insurance policy, if he or she has one. Nursing home residents whose room and board are not covered by Medicare may still look to Medicare for health coverage for hospital stays, medical care, and medications.

Medicaid is a health care safety net funded by federal and state governments for people who meet resource-eligibility requirements. It pays for nursing home care as long as the resident remains income-eligible and has long-term care needs. Medicaid clients pay a monthly deductible set by state law, and covered services vary from state to state.9

Nationwide, more than two-thirds of nursing home residents receive help from Medicaid.10 So when offering advice on nursing home choices, you should be aware of relevant state Medicaid eligibility rules, including asset exhaustion requirements, income retention, and spousal impoverishment rights. You should also be familiar with state-based variations in Medicaid-covered services and be able to point your client to state agencies, advocacy organizations, or ombudsman services that handle Medicaid questions and concerns in your state.11

Even if your client’s resources are ample, it’s wise to consider a facility’s Medicaid certification at the start. For one thing, Medicaid-certified facilities are evaluated annually and must meet federal and state certification, licensing, and performance standards.12 Moreover, statistics show that most long-term nursing home residents will deplete their resources enough to meet Medicaid eligibility standards at some time during their stay, and federal law prohibits Medicaid-certified homes from evicting residents or terminating necessary services when residents become Medicaid-eligible.

On the other hand, the ability to pay privately for coverage—or coverage under Medicare’s 100-day post-hospital skilled-nursing-care benefit—may help a client gain admission to the nursing home of his or her choice, as private payments and Medicare reimbursement rates easily exceed Medicaid reimbursement rates.13

Whether your client pays privately or with public support, know what services will be covered in a nursing facility’s rate structure. Private-pay residents, in particular, should ascertain which services are included in the facility’s basic daily rate and which—for instance, therapy, medications, lab tests, and physicians’ services—are billed separately.

Your clients should also ask about rate-increase history, policies, and notification requirements. And they should understand their rights under state and federal law when it comes to the facility’s proposed financial and legal terms, such as paying a security deposit, placing funds in trust with the facility, guaranteeing financial responsibility, giving donations in return for guaranteed bed space, or receiving notice of and assistance with Medicaid eligibility.14

Admissions paperwork that includes an agreement to arbitrate grievances should be handled with extreme caution. Explain to your clients how arbitration clauses can limit their ability to get recourse for violations of care and fiduciary violations. The latter came to light recently at Maryland’s highest court, in a case that involved payment disputes, botched Medicaid applications, and claims of outright fraud.15

Some states have attempted to standardize nursing home admissions agreements to prevent such abuses. Even so, remind clients that it is always wise to have an attorney review the financial terms of any admissions agreement before signing it.16

Information about the nursing home’s administrative structure and its stability may also be important to a client’s choice. From Medicare’s Nursing Home Compare program, your client can quickly learn whether a home is a for-profit, chain, or not-for-profit operation, which often correlates with a home’s staffing levels and—as noted above—with quality of care.17 The client can check on the home’s staffing levels, stability of the current administration, and turnover; these also tend to correlate with quality of care and—as you probably know—of amenability to suit and summons if things go wrong and litigation ensues.18

Your client may be interested in the activities, governance rights, and advocacy roles of resident or family councils. Ask about the ease of family visitation, which is an easy way to keep tabs on treatment and care. Look closely at compliance with administrative regulations regarding licensing and accreditation, required postings, notices, needs-assessment and care planning, safety inspections, and money management as indicators of administrators’ concern for the residents’ rights and needs.19

Assessing quality of care

Quality of care, certainly one of the chief criteria for selecting a nursing home, is at the heart of your experience as a nursing home litigator.

You know how to scrutinize inspection reports, medical records, and staff logs for indicators of deficiencies in staffing, training, supervision, policy development, equipment, assessment, planning, and oversight. But that’s mostly after-the-fact investigation; looking for these red flags before your client signs an admissions agreement is a different matter. Here are some simple suggestions to make the process more manageable.

Considerspecialneeds. If the person has special medical needs—for instance, respiratory therapy or a specialized dementia unit—make sure that prospective homes offer those services and have a history of compliance with the necessary certification standards. Also, make sure that certified facilities do not regularly reject appropriate patients simply for staffing convenience or cost control.20

Checktherecords. Using Nursing Home Compare or similar sources, look carefully at the facility’s record on key quality measures: infection control, pressure sores, weight loss, bladder control, use of restraints, mobility and daily living skills, depression, anxiety, and pain treatment. As CMS cautions, these measures are not standards of care, but they do offer a snapshot of each home in comparison to others. And they often point to problems that may show up in resident complaints, CMS investigations, and even litigation.21

Visitthefacility. When you do, take along one of the many checklists available from federal, state, and advocacy sources.22 Pay particular attention to details about hiring practices; accommodation of personal needs; thoroughness of assessments and care plans, and regularity of reviews; care with continence, hydration, and nutrition; use of feeding tubes, sedation, and restraints; medication protocols; pressure ulcers and personal care; environment and activities; emergency procedures; and billing and administration.23

Lookfor“culturechange”programsorpractices. “Culture change” is a term used by nursing home researchers and advocates to describe actions taken to improve quality of care and quality of life by “de-institutionalizing services and individualizing care.”24 It grew out of the 1987 Federal Nursing Home Reform Act, which mandates that each nursing home “care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident.”25 Homes that emphasize this protocol use “person-directed practices” that allow residents to make daily life choices on their own, emphasize the continuity of relationships between residents and staff, and make the care environment as homelike, intergenerational, and intimate as possible.

A CMS study offers a checklist, titled ArtifactsofCultureChange, that measures a facility against culture-change criteria. This guide can be of great help in identifying quality-of-care and quality-of-life factors that are important in any nursing home setting.26

A valuable service

Your experience, knowledge, and the instincts you’ve honed as a nursing home litigator can help you offer a valuable service to your clients. Use your hard-won knowledge to help them make one of the most important decisions for themselves and their loved ones. Learn to use the tools and resources you’ve developed in litigation—along with those available through federal, state, and advocacy organizations—with greater insight and discernment.

You may not be an elder law specialist, but by drawing on your familiarity with nursing home practices and your ability to look past a facility’s outward appearance, you may help clients avoid those ugly stories of nursing home care gone awry.

Medicare’s Web site offers state links and home-by-home evaluations, the starting point for any nursing home search, at Ctrs. for Medicare & Medicaid Servs., NursingHomeCompare,www.medicare.gov/nhcompare.

See Cal. Advocs. for Nursing Home Reform, NursingHomeAdmissionAgreements (Feb. 16, 2010),//canhr.org/factsheets/nh_fs/html/fs_admissionagreement.htm(noting California’s efforts to develop a standard admissions agreement and describing the common problems such an agreement was intended to address).

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